Cap1 & CCA return

[tifo]

This is an interesting document on assignment and myths. Although Australian, a lot of the stuff is relevant to us and English Law.

 

http://www.claytonutz.com/downloads/AssignmentsOfDebts_FullPaper.pdf

[davefirewalker]

Ok ....take a deep breath and sit down

 

this is taken from Halsburys laws of England "choses in action"

 

A chose is an old english term for "thing"

 

A debt can be called a Chose in action or a Thing in action

 

.........................

8. Enumeration of choses in action.

 

In order that a more comprehensive idea as to the nature and extent of a chose or thing in action may be formed, it may be convenient to show in some detail what kinds of things and property have been held to be choses in action. The following things have been held to be choses in action1; they are grouped in five divisions for purposes of convenience only:

 

(1) debts2, whether due by specialty or by simple contract, whether or not disputed by the debtor3, and whether debts of record or judgment debts; money paid into court5 does not, however, give rise to a 'debt' or

chose in action in the accepted sense of the expression6;

 

(2) the benefit of a contract7, including a contract to purchase a reversionary interest8;

 

(3) recognised subjects of property, such as stock in public funds9; a share of bank stock10; shares in joint

stock companies11, and presumably in every kind of company12, including stock issued by national

corporations13; policies of insurance of every kind14; and copyrights15, although patents have not been choses

in action since the Patents Act 197716;

 

(4) equitable rights to property, such as beneficial interests under trusts (or, formerly, uses17) and in trust

funds18; and legacies19 and the like, including equitable interests in a fund etc20 and the right of a residuary

legatee or person entitled on intestacy to have the estate duly administered21;

 

(5) miscellaneous rights, such as a right of action22 arising under contract23, including a claim for

unliquidated damages for breach of contract24, or a right of action arising out of tort25; but not a mere right to

apply for an order for costs26, nor a liability which has been brought about by fraud where an action to enforce

that liability is capable of immediate defeasance as soon as the fraud is pleaded27, nor an export quota28, nor

the prospect of receiving an award from the Criminal Injuries Compensation Board (now the Criminal Injuries

Compensation Authority)29.

 

 

9. General power of assignment.

 

Subject to three exceptions1, the common law did not permit the assignment of choses or things in action2. From early times, however, equity took a different view and freely permitted the assignment of choses in action3. In the case of equitable choses in action the assignee could bring an action in his own name, but in the case of legal choses in action the action had to

be brought in the name of the assignor, though equity would, if necessary, compel the assignor to lend his name to the proceedings4. As a consequence in most cases the assignee became able to sue in the name of the assignor, even at common law5. The Supreme Court of Judicature Act 18736 provided in general terms for the assignment of choses in action at law.

 

The present position is that as a general rule choses in action may be transferred from one person to another by assignment inter vivos; there are, however, certain exceptions to this rule which will be dealt with elsewhere in this title7. Further, although a chose in action, such as a debt, which is a right to sue the debtor, can be assigned or made available to a third

party, it cannot be assigned to the debtor, who cannot sue himself8.

 

10. Modes of transfer.

 

The transfer of a chose or thing in action may be effected by a legal assignment in accordance with the provisions of the Lawof Property Act 1925, or by an equitable assignment, that is, an assignment which is effective to pass an equitable, though not a legal, right to the chose in action2. In addition, assignment at law is possible under the three exceptions to the common law rule, namely: (1) in the case of certain particular choses in action, by an assignment in accordance with the provisions of special statutory enactments3, the most important being stock and shares in incorporated companies4; or (2) in the case of certain negotiable instruments, by delivery of the document under the law merchant5; or (3) in the case of a transfer by or to the Crown, under the special privileges the law allows in such a case6. The special rules relating to covenants running with land, and the transmission of the benefit of restrictive covenants

affecting land, are dealt with elsewhere in this work7.

 

Choses in action will, as a rule, pass to the executors under a will8. Choses in action are also subject to transfer by operation of law upon death or bankruptcy9, or may be transferred by statute10.

 

 

hope this helps........(blank expression)

 

sorry about the formatting and the errant numbers

 

Dave

Edited July 10, 2008 by davefirewalker

[davefirewalker]

hehehehe

 

it seems we both posted at more or less the same time......

 

 

Dave

[tifo]

In the case of equitable choses in action the assignee could bring an action in his own name, but in the case of legal choses in action the action had to be brought in the name of the assignor, though equity would, if necessary, compel the assignor to lend his name to the proceedings. As a consequence in most cases the assignee became able to sue in the name of the assignor, even at common law.

 

Isn't that the other way around? i.e. absolute means they can sue in their own name and equitable means they cannot? That document has it the other way round?

[davefirewalker]

yes....that bit confuses me too :???

 

 

Paul........where are you

 

Dave

[tifo]

and here

 

http://books.google.co.uk/books?id=uLd4qy7LJJYC&pg=PT225&lpg=PT225&dq=equitable+assignment&source=web&ots=rPXFhcODLq&sig=ru5J-4i-3q1KIG0CxuWzfcor72M&hl=en&sa=X&oi=book_result&resnum=4&ct=result#PPT225,M1

[davefirewalker]

Tifo...(and anybody else that feels like wading knee deep in law books) I have laws of contract and choses in action on pdf if you want them....pm me your email

 

Dave

[Chalkitup]

Hello All,

Been following this assignment chat as Moorcroft have been instructed to collect my debt .... and today I got the Notice Of Intended Litigation letter from them ..... where they list the extra charges that I will have to pay if it goes to court ..... am I right in saying they can not bring legal action against me and what is the best reply to their threat.

Thank you

 

 

Onwards and Upwards

 

Chalkitup

[davefirewalker]

Moorcroft cannot or will not take you to court..... they are normally only agents acting for an OC

 

I have lost count of the number of "court action" and "Intended litigation" Some in black and white...some in red, that I have had from them....They usually go straight into the recycler....after being shredded first.

 

Have you had the "we will send someone round to knock at your door" letter yet "

 

dont let them worry you too much....bunch of muppets

 

Dave

[Chalkitup]

Thank you Dave,

 

As I suspected .... but always best to check.

Not had the doorstep call threat yet.

Mind you the letter was in a very pretty yellow envelope.

 

 

Onwards and Upwards

 

Chalkitup

[tifo]

Is this why debts are not assigned absolutely?

 

Conditions for claiming bad debt relief:

 

1.You must already have accounted for the VAT on the supplies and paid it to Customs and Excise;

 

2.You must have written off the debt in your day to day VAT accounts and transferred it to a separate bad debt account;

 

3.The value of the supply must not be more than the customary selling price;

4. The debt must not have been paid, sold or factored under a valid legal assignment. (See paragraph 3.12);

 

5.The debt must have remained unpaid for a period of six months after the later of the time payment was due and payable and the date of the supply;

 

 

It would seem (from the IR) that the bank cannot claim vat/tax relief on a debt is assigns absolutely, which may explain why Cabot and the rest prefer rights and benefits but not obligations and liabilities. There may also be accounting benefits for them in this as well.

[PriorityOne]

So a bank is not supposed to claim tax relief and then flog a debt out to a third party company ? Oh dear, methinks the IR may be interested in the moonlighting activities of all those who've been cashing in on this little "perk" for years on end.

 

[tifo]

So a bank is not supposed to claim tax relief and then flog a debt out to a third party company ?

 

Or the other way around, i.e. they're not meant to sell a debt and then claim vat/tax relief. I wonder how many do, and don't?

[tifo]

Page 3 here Foreword Other notices on this or related subjects 1. Introduction 1.1 What is this notice about?

[MAGDA]

Thanks for the info Tifo and Dave, i'm sure a lot of people will find it very useful, Magda

[SteveH2508]

Is this why debts are not assigned absolutely?

 

Conditions for claiming bad debt relief:

 

1.You must already have accounted for the VAT on the supplies and paid it to Customs and Excise;

 

2.You must have written off the debt in your day to day VAT accounts and transferred it to a separate bad debt account;

 

3.The value of the supply must not be more than the customary selling price;

 

4. The debt must not have been paid, sold or factored under a valid legal assignment. (See paragraph 3.12);

 

5.The debt must have remained unpaid for a period of six months after the later of the time payment was due and payable and the date of the supply;

 

 

It would seem (from the IR) that the bank cannot claim vat/tax relief on a debt is assigns absolutely, which may explain why Cabot and the rest prefer rights and benefits but not obligations and liabilities. There may also be accounting benefits for them in this as well.

 

The tax relief that they claim is not VAT bad debt relief. Financial services are exempt from VAT. They are claiming corporation tax relief (the tax on their profits) so I'm afraid that this is not relevant.

 

FYI - also the debt must be more than six months old to claim VAT bad debt relief.

[wednesday1867]

Any chance of a little insight, opinion etc on my thread in the Egg forum.

 

Egg No Agreement Default Removal

 

Quick background.

 

CCA'd them last year, they sent me a few documents, i argued that they were not enforcable. Passed to Dca, dca will ask for my agreement, March this year dca tell me they arent able to produce the agreement.

 

So my next step is, im trying to get my default removed, sent an lba, but Egg have replied saying they have sent me the correct documents and the default was added correctly.

 

Yet Egg have not once asked for any payments, so if they are the correct documents, why arent they chasing me for payments?

 

Anyway, id appreciate some intelligent insight if possible

 

 

Thanks

[ncf355]

Hi,

 

check out carlands T and C's:

 

Carland

 

 

No 10. in the T and C's seems to give them the right to override the Consumer Credit Act 1974, how very nice for them

[reallymadwoman]

I presume you mean number 11? If anyone has an agreement with them, I would suggest use of the Unfair terms regs. Surely if an agreement drawn up by the creditor is improperly executed, it's their fault not the customers, so why should the customer be penalized?

[ncf355]

Hi,

 

yes, sorry, 11. but 10.ii) looks a bit odd?

 

Customer cant be penalised and as you rightly point out the UTCR would come in as they cant call upon someone to opt out of their rights undder the CCA 1974

[foolishgirl]

Oooh, where's Mrs. Wilson?! She'd have Carland for breakfast!!

[patrickq1]

no 17 is also wrong

[swinny]

hi - if anyone can help, it would be really appreciated. Have read through this forum and am a bit confused.

 

Have cca'd 5 credit card companies and have had responses from all but 1. Please can you clarify exactly what i should receive back from them and what would make them in default of the cca request. thanks for your help!

[car2403]

Hi Swinny,

 

A CCA request is a formal request under the Consumer Credit Act for a copy of the originally executed credit agreement.

 

Without such an agreement, the debt would be unenforceble.

 

If they provide an agreement, it must comply with the Act and the regulations made under it, for it to be enforceable in Court.

 

Without going in to what every agreement needs, it's probably better if you post up (personal details removed) what you have received, again probably better in a different thread for each agreement, so we can pop in and take a look at the individual responses - we can then tell you if the agreements are executed correctly and whether the debt is enforceable or not, as a result.

 

This whole subject can get a little confusing, so you're better off posting what you have and getting some expert advice on the response in reply.

[star_scream]

HELP!

I have just received a copy of my CCA with Black Horse for a car. The figure they have put in the total amount payable is incorrect.

They have added my part exchange deposit too the total amount payable. Also in the termination bit the calculation is wrong.

Edited July 15, 2008 by star_scream